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If they didn’t do it, why would they confess?

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It is difficult to comprehend why someone would confess to a crime he or she did not commit.  After all, human beings do have a certain sense of self-preservation, and such behavior directly contradicts that instinct.  Nevertheless, under certain conditions, innocent people will confess to a crime they did not commit.  According to the National Registry of Exonerations,13% of the 1,200 exonerees since 1989 have implicated themselves falsely.  When isolated to homicide cases, the percentage jumps up to 21%.

In order to understand why an innocent person might be convinced to falsely implicate his- or herself, we need to consider the police tactics and typical human reactions to those specific behaviors.  Most police departments employ the Reid technique, which is designed to extract a confession from the police suspect.

Reid-trained officers use a nine-step formula to secure confessions; they are taught how to invent a sympathetic scenario for the commission of the crime, to handle denials, and to overcome objections.  The idea behind this method is to convey to the suspect that there is no doubt as to their guilt, and that accepting the truth as the officer states it will be in their best interest.

Investigators first misclassify an innocent person as guilty; they next subject him to a guilt-presumptive, accusatory interrogation that invariably involves lies about evidence and often the repeated use of implicit and explicit promises and threats as well.

Richard Leo, False Confessions: Causes, Consequences, and Implications.

Leo criticizes the Reid technique for falsely teaching police they “can become human lie detectors capable of distinguishing truth from deception at high, if not near perfect, rates of accuracy” when scientific studies demonstrate “[m]ost people get it right at rates that are no better than chance (i.e., 50%) or the flip of a coin.”

Causing further harm, police officers are permitted to lie to suspects regarding evidence that may not actually exist, or events that may not have happened.  When police officers lie to innocent suspects, it presents a confusing alternate reality that causes great psychological distress as the innocent person struggles to remember the true events, while being told a false and conflicting story.  This causes cognitive dissonance, which is mental and psychological discomfort from holding contradictory beliefs.

Cognitive dissonance is difficult for people to resolve under the best of circumstances.  When a person is a very tense and stressful situation, and is emotional, anxious, and scared, the dissonance will act as a motivator, causing a person to attempt to decrease the dissonance, thus gaining consonance, or cognitive agreement.  In other words, the person will internally weigh the “facts” of both realities, assess which one seems more plausible and in accordance with how they think they acted, and attempt to make a good decision.  The suspect in custody has to decide what they believe, which may or may not be fact-based.

Police-induced false confessions arise when a suspect’s resistance to confession is broken down as a result of poor police practice, overzealousness, criminal misconduct and/or misdirected training.

Leo and Ofshe,  The Consequences of False Confessions.

Moreover, some populations are more susceptible to these interrogation techniques than others, and, therefore, have a higher probability of falsely confessing to a crime.  Vulnerable suspects include juveniles and those with mental health issues, psychiatric disorders, developmental disabilities, other cognitive impairments, and others with greater tendency toward compliance.

Given the verified risks of police-induced false confessions and the particular vulnerability of some groups, some efforts should be made to protect the innocent.  One highly recommended protection is to electronically record the entire interrogation process that produces the confession.  If we required all custodial interrogation sessions to be video recorded, we could objectively analyze the integrity and accuracy of the result.  We would know what tactics the police employed and the circumstances under which the suspect confessed.  Mandated videotaping would also help hold members of law enforcement accountable and may ultimately lead to scientifically-supported interrogation protocol.

As of last year, twenty-one states had enacted laws requiring recording of custodial interrogations to some extent.  In October 2013, California joined a growing list when a bill sponsored by Senator Ted Lieu was signed into law.  In California, law enforcement is now required, with some notable exceptions, to record all interrogations of juvenile murder suspects.  While offering some protection for one portion of the vulnerable population, the law only applies when the juvenile is charged with murder.  This law does nothing to reduce the risks of false confessions for everyone else.  Critically, none of the listed California false confession exonerations involved juveniles and only 26% of the listed false confession exonerations nationwide involved juvenile defendants.

Why are law enforcement agencies not video recording all interrogations?  Are there legitimate reasons not to record all custodial interrogations?  What other common-sense practices would help keep police officers, and other members of our justice system, more accountable and prevent false confessions?

[Contributing editor: Deirdre O'Connor]

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